Republicans are ready to tackle net neutrality under the Trump administration, though it is unclear if they will completely or only partially dismantle the Federal Communications Commission’s Open Internet rules. Regardless of the outcome, another government agency, now under control of a free-market Republican, is poised to take control of Internet regulations.
One day before President Trump appointed Maureen Ohlhausen to be acting chair of the Federal Trade Commission, which is an independent agency in charge of protecting consumers from unfair business practices, she criticized the FCC’s 2015 rule reclassifying Internet service providers as Title II public utilities for hurting consumers.
“Regulation that stifles innovation and compromises efficient incentives is not the right path,” Ohlhausen said. She reasoned that market forces are adequate enough to stave off anti-competitive practices and “punish” Internet service providers who throttle rival content that consumers want.
As an added layer of security, Ohlhausen heralded her agency’s antitrust authority, which operates as a check against unfair business practices as being “well-equipped” to handle any “improper exclusion” by ISPs.
Julie Brill, a former FTC commissioner who served from 2010-16, doesn’t expect any major changes to FTC enforcement, but does see Ohlhausen as a force to be reckoned with when it comes to protecting consumers.
“She will hit the ground running and begin right away to change the agency’s priorities so that they align more closely with her own priorities,” Brill said.
When Ohlhausen became acting chair, she replaced Democrat Edith Ramirez after she announced last month that she plans to leave the commission on Feb. 10. Once Ramirez departs, only Ohlhausen and Democrat Terrell McSweeny will be left. McSweeny’s seven-year term ends in September.
The FTC, like the FCC, is a five-member panel whose remaining commissioners will be nominated by Trump and will need to get Senate approval. While Republicans are certain to become the majority, the president is limited to having no more than three FTC commissioners of one party at a time.
A newly Republican-controlled FTC under Ohlhausen will find a kindred anti-net neutrality counterpart in the FCC, led by recently appointed Chairman Ajit Pai.
In a speech he gave in November, Pai said that under Trump, the FCC will take a “weed wacker” to regulations such as net neutrality, which were championed by his Democratic predecessor, Tom Wheeler. As of press time, Pai had yet to offer any clues on how he plans to implement a strategy that could dismantle or simply weaken the net neutrality regulations.
And while Pai won’t say whether the agency will, in the meantime, continue enforcing the main rules under net neutrality, the FCC last week extended a transparency exemption to small ISPs that allows them to refuse publicly disclosing promotional rates, fees or data caps for the next five years.
In his dissenting statement to the FCC’s move in late 2016 to crack down on ISP privacy practices, Pai suggested that he’s supportive and open to returning to an Internet overseen by the FTC.
“Online consumers should and do have a uniform expectation of privacy, [and] that expectation should be reflected in uniform regulation of all companies in the Internet ecosystem,” Pai wrote. “That’s the model we had during a decade of FTC regulatory oversight. That’s the model that gave us an Internet economy that’s the envy of the world.”
The debate on whether the FTC or the FCC should enforce any kind of net neutrality regulations has been going on for years. The House Judiciary Committee held a hearing in June 2014 to hear testimony about antitrust laws’ effectiveness in protecting consumers and innovation on the Internet, versus that of regulation. The man who coined the term “net neutrality,” Columbia Law School professor Tim Wu, testified that antitrust agencies such as the FTC were too limited in scope to oversee the Internet.
“I have the highest admiration for the antitrust laws,” Wu said. “But I simply don’t think they’re equipped to handle the broad range of values and policies that are implicated by net neutrality and the open Internet.”
Some supporters still have hope for at least partial preservation of the FCC’s net neutrality regulations, which received a record 3.7 million comments from the public during the open comment period in 2014. According to an analysis of 800,000 comments by the Sunlight Foundation, less than 1 percent of the comments were plainly opposed to net neutrality.
Wheeler, delivering his final speech before the end of his term as chairman last month, said “contrary to what you might have heard, reversing the Open Internet rules is not a slam dunk.”
Noting that venture investment in Internet-specific businesses shot up 35 percent in the year after net neutrality was adopted, Wheeler hailed the Open Internet as being “the most powerful engine for innovation, economic growth and job creation in the world today.”
Lawmakers too are concerned about the future of net neutrality. Many Republicans opposed the implementation of the regulations, and now Democrats are pushing to keep them in place. Senate Commerce Chairman John Thune, R-S.D., expressed concern about potential political turmoil arising from “complex and ambiguous regulations that shift with the political winds.”
“For people to get the maximum benefit possible from the Internet, they need certainty about what the rules are and, most importantly, what the rules will be in the coming years,” Thune said last month at the State of the Net conference. “The only way to achieve this is for Congress to pass bipartisan legislation.”
